I-601A Provisional Waiver May Not be Required for Some DACA Recipients

I-601A Provisional Waiver May Not be Required for Some DACA Recipients

The Legal Action Center has released a report which confirms a positive development for some DACA recipients who previously had only the option of applying for lawful permanent residence through the I-601A Provisional Waiver process.   I excerpt the relevant portions below:

“On June 15, 2012, the Secretary of the United States Department of Homeland Security (DHS) issued a memorandum allowing individuals who entered the United States before turning sixteen and who meet certain guidelines to pursue Deferred Action for Childhood Arrivals (DACA).  One of the benefits of DACA is that the recipient may seek permission to travel abroad temporarily for humanitarian, educational, or employment purposes.  A DACA recipient who seeks to temporarily leave and re-enter the United States must apply for advance parole.  If a DACA recipient travels abroad and returns under a grant of advance parole, then s/he is “paroled” into the United States within the meaning of INA §245(a), and may qualify for adjustment of status.”

“In Matter of Arrabally and Yerrabelly, the Board held that travel on advance parole does not constitute a “departure” for purposes of the 10-year-bar for unlawful presence under INA § 212(a)(9)(B)(i)(II).  While Matter of Arrabally and Yerrabelly addressed advance parole in the context of adjustment applications, the USCIS Administrative Appeals Office (AAO) has since applied this analysis in at least several cases involving individuals holding Temporary Protected Status (TPS), each of whom left temporarily following the accumulation of more than one year of unlawful presence and then returned to the United States under advance parole.  Based on Matter of Arrabally and Yerrabelly, the AAO found that these applicants were not inadmissible and that waivers of inadmissibility were not necessary.

Although there has been no formal written guidance on this issue yet, it appears likely that USCIS views Matter of Arrabally and Yerrabelly as applicable to DACA recipients traveling on advance parole.  Indeed, some DACA recipients have received advance parole authorizations (Form I-512L) explicitly stating that traveling abroad under advance parole is not a departure within the context of INA § 212(a)(9)(B), pursuant to Matter of Arrabally and Yerrabelly.”

Thus, advance parole may make some DACA recipients gain the dual benefit of eliminating exposure to the 3 or 10 year unlawful presence bars they are subject to pursuant to INA § 212(a)(9)(B); and gaining eligibility for adjustment of status, thereby eliminating the need to consular process through the U.S. embassy in their home country.

This positive development ONLY applies for DACA recipients who are the spouses of U.S. citizens or children (unmarried and under 21 years of age) of U.S. citizen parents, who are not subject to any other grounds of inadmissibility (aside from the 3 or 10 year unlawful presence bar under INA § 212(a)(9)(B)).  This group may no longer need to apply for lawful permanent residence through the I-601A Provisional Waiver process.  Instead, they can now apply for advance parole; depart from the U.S.; and re-enter the country to proceed with their adjustment of status to lawful permanent residence within the United States.

Keep in mind that the inspecting immigration officer at the port of entry may deny entry into the United States if the officer finds that any of the inadmissibility grounds apply.  Thus, even after being granted advance parole as a DACA recipient, you should make absolutely sure you are not subject to any of the other grounds of inadmissibility before departure from the U.S.

For example, there should be no outstanding orders of removal on file.  You should not be subject to previously incurred immigration bars, such as the unlawful presence bars under INA § 212(a)(9)(B) or the permanent bar under INA § 212(a)(9)(C), based a prior departure before obtaining advance parole.  You should not be subject to the criminal grounds of inadmissibility under INA § 212(a)(2) or for fraud/misrepresentation under INA § 212(a)(6)(C).  It is important that an immigration lawyer with particular expertise in waivers and the immigration grounds of inadmissibility guide you through this process.  Matter of Arrabally and Yerrabelly is not a precedent decision and you must proceed with caution.